John Roughan: Plain packs a plain vendetta

Cigarette users have been driven to the back steps, and the tobacco companies are now weaker than their opponents. Picture / Brett Phibbs

The more I think about it, the more offensive it becomes that cigarettes might have to be sold in plain packs.

I'm not a smoker, haven't bludged one for 20 years. I'm not in the pay of tobacco companies, haven't even visited the website they set up this week to argue for the right to use their brands.

I have read the Ministry of Health's consultation paper for the public, and it struggles to describe the harm done by a cigarette packet.

Gruesome graphics of disease already have to cover 90 per cent of one side of the carton and 30 per cent of the other. The ministry suggests the colour and the brand "tempts young people to try smoking or triggers cravings and relapses in people trying to quit". Come on.

The rhetoric of those pressing for plain packs suggest the smokefree campaign has gone far beyond the needs of public health and continues simply as a vendetta against "Big Tobacco" for its old defiance of medical science.

"Big Tobacco" is a tactical description, not a truthful one. The industry nowadays is much weaker than its opponents. Doctors are on their side. They get public money for publicity that can be far more gross and shocking than private sector advertising permits.

The industry, silenced with bans on advertising and sponsoring, has had its remaining customers banished to the back steps of buildings, its products shut away from shop display. Its response each time has been fairly supine.

Not this time. Tobacco-producing countries and companies are challenging Australia's plain pack legislation at the World Trade Organisation. One company, Philip Morris, has taken a separate action under the terms of Australia's trade agreement with Hong Kong.

These suits would seem to have little chance so long as the Australian law satisfies the first principle of free trade - non-discrimination against imports.

But a report by Auckland law professor Jane Kelsey suggests they could succeed.

Kelsey, an inveterate opponent of free trade commitments, follows negotiations more closely than possibly anyone in the world. Her report, "International Trade Law and Tobacco Control", written for a smoking reduction research programme at the university, notes that for public health measures to be exempted from some trade rules they have to be "necessary to protect human, animal or plant life or health."

The crucial word is "necessary", she says. "The Government is not the final judge of whether a measure is necessary; it us ultimately determined by trade experts in a dispute tribunal."

The panel would first examine whether the public health objective was legitimate. She thinks New Zealand's objective, the eradication of smoking by 2025, might struggle.

Then the panel would ask whether the proposed law would meet the objective. "Often highly contested, especially where measures are unprecedented, precautionary or part of a policy package [whose] effect is cumulative."

Finally, the panel would ask whether there was an alternative that could meet the objective with a less restrictive effect on trade.

"Tobacco interests usually argue that education and sometimes non-discriminatory taxes are the most effective and proportionate policies."

Plain packs would appear to fail all of those tests, but I wouldn't bet on it. Deference to doctors is universal.

Kelsey warns that even if challenges under trade rules do not succeed they can put a government to great expense and discourage it from taking the risk. There is hope.

John Key's Government has made the decision on plain packs "in principle" while the public mulls it over. It is not a slam dunk, he says. Probably the Government will await the outcome of the Australian cases.

But the prime mover for plain packs here is the Maori Party, particularly Tariana Turia, an Associate Health Minister.

The Maori smoking rate is twice the national rate. Maori start smoking younger and are three times more likely to die from lung cancer.

The Maori Party has already secured increases in tobacco tax that aim to price cigarettes out of the reach of many. That sounds more effective than a plain pack.

The smokefree campaign may find that suppressing a brand is harder than it imagines. A business lives on its brand, invests everything in it. If tobacco companies cannot put their trade mark prominently on their product they will find a way to put it somewhere.

They might, for example, produce stylish durable containers to be available with plain packs, maybe a neat leather holder smokers can keep. This week's website will not be the end of their ideas.

Each time they find a new mode of brand expression, another law will be needed to suppress it. That is the slippery slope ahead unless we decide there is more to life than health. There is liberty too.

John Roughan is an editorial writer and columnist for the New Zealand Herald.

John Roughan is an editorial writer and columnist for the New Zealand Herald. A graduate of Canterbury University with a degree in history and a diploma in journalism, he started his career on the Auckland Star, travelled and worked on newspapers in Japan and Britain before returning to New Zealand where he joined the Herald in 1981. He was posted to the Parliamentary Press Gallery in 1983, took a keen interest in the economic reform programme and has been a full time commentator for the Herald since 1986. He became the paper's senior editorial writer in 1988 and has been writing a weekly column under his own name since 1996. His interests range from the economy, public policy and politics to the more serious issues of life.